United States v. Bruce Michael Orr

292 F. App'x 11
CourtCourt of Appeals for the Eleventh Circuit
DecidedAugust 27, 2008
Docket07-15458
StatusUnpublished

This text of 292 F. App'x 11 (United States v. Bruce Michael Orr) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Bruce Michael Orr, 292 F. App'x 11 (11th Cir. 2008).

Opinion

PER CURIAM:

Bruce Michael Orr appeals his conviction and 168-month sentence for (1) receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2), (b)(1); and (2) possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). For the reasons stated below, we affirm.

Facts

Bruce Orr (“Bruce”) was married to Sa-linda Orr and lived with her and Salinda’s daughter from a previous relationship, “M.” Mr. and Mrs. Orr had been having marital difficulties and agreed that Salinda and M would live on the bottom floor of the house while Bruce would live upstairs. A computer with internet access was accessible to all three and was kept downstairs.

In March of 2005, Salinda took the computer to John Goodman, the teacher in a computer class taught at Salinda’s church. She complained to Goodman that the computer was running slowly and that it crashed often. Goodman took the computer to a technician who discovered pornographic images of children on the computer and the technician returned the computer to Goodman. Goodman informed Salinda of the images and removed the original hard drive (referred to as Q-2) and placed it into an antistatic bag for protection from static interference or anything that might erase its contents. Goodman then installed a hard drive onto the computer (referred to as Q — 3), along with a new operating system, Windows XP. Goodman then created three accounts with password protection, one each for Bruce, Salinda, and M. It was possible, however, that each user could change the passwords of other users and log-in as those other users by way of the administrator account. Goodman then returned the computer to Salinda sometime in mid-to-late April. Bruce was not told that anybody knew of the images on the Q-2.

The events of June 18, 2005 were disputed at trial. According to the Government, Bruce was using the computer and stepped away. M then went to the computer and found images of child pornography and notified Salinda, who then took pictures of the screen using a digital camera. An argument ensued in which Salinda told Bruce that she knew of the images on Q-2 and that Goodman had the hard drive. Bruce responded, threatening Salinda, and stating that she had better get the hard drive back. Salinda then notified the FBI.

*13 According to Bruce, he entered the house on the 18th and noticed Salinda and M at the computer. He stated that they were shielding the screen from him. He claimed that Salinda was using the threat of child pornography as an attempt to blackmail him in them divorce proceedings.

Between the two hard drives, forensic experts found thousands of images containing child pornography. They also found that the Bruce account had accessed child pornography on multiple occasions. On some days, thousands of images were accessed. Evidence also showed that the user of the Bruce account searched the internet using terms such as “Lolita,” “kids,” “child,” “porno,” and “illegal.” The Bruce account also visited a website containing references to “extreme Lolitas” 328 times.

No evidence existed that the other two accounts ever accessed child pornography, nor was there evidence that any other child pornography existed at the house or in any other disc, CD, or DVD. On June 18th, a user logged in under the M account, changed Bruce’s account password and deleted the files contained in the temporary internet folder, a folder that saves images of the websites visited. A shortcut to all the child pornographic images that were stored in the “favorites” folder in the Bruce account was also deleted. Both the temporary internet files and the shortcut were restored by the Government’s forensic expert, who stated that the index.dat file could not be deleted and that this file contained a list of all the websites visited.

Bruce testified that he used the terms “Lolita” and “teen” to search for adult pornography. He stated that child pornography would “pop-up” on the screen when he would search for adult pornography but that he would close the windows because he was not interested in it.

Bruce obtained a forensic expert, Michael Black. Prior to the trial, Bruce’s trial counsel failed to comply with requirements relating to the disclosure of his forensic expert’s report and the judge limited the extent to which Black could testify.

The jury returned a guilty verdict for both receiving and possessing child pornography. At sentencing, the judge applied an enhancement for obstruction of justice based on Bruce’s testimony that he did not intend to view child pornography by using the search terms “Lolita” or “preteen,” etc. The judge then sentenced Bruce to 168 months, the bottom of the Sentencing Guidelines range.

Discussion

(1) Ineffective Assistance of Counsel

Bruce argues that he was constitutionally deprived of his Sixth Amendment right to effective assistance of counsel and that the district court erred in denying his motion for a new trial because his trial counsel was ineffective.

Whether a criminal defendant’s trial counsel was constitutionally ineffective is a mixed question of law and fact, subject to de novo review. United States v. Bender, 290 F.3d 1279, 1284 (11th Cir.2002). We review a district court’s denial of a motion for new trial for an abuse of discretion. United States v. Tokars, 95 F.3d 1520, 1531 (11th Cir.1996). This court does not generally consider claims of ineffective assistance of counsel raised on direct appeal where the district court did not entertain the claim or develop a factual record. Bender, 290 F.3d at 1284. However, this court can review an ineffective assistance of counsel claim on direct appeal so long as there is sufficient evidence in the trial record regarding the claim. Id. An ineffective assistance of counsel claim is considered under the two-prong test announced in Strickland v. Washington 466 *14 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the first, deficient performance prong, the appellant must show that counsel made errors so serious he was not functioning as the counsel guaranteed by the Sixth Amendment. Id. There is a strong presumption that counsel’s conduct fell within the range of reasonable professional assistance. Id. at 689, 104 S.Ct. 2052. Under the prejudice prong, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694,104 S.Ct. 2052.

Here, the record is sufficiently developed for this court to hear the ineffective assistance claim on appeal; Bruce raised this issue in his Motion for New Trial and the court addressed it at length. See United States v. Camacho, 40 F.3d 349, 355 n. 6 (11th Cir.1994).

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Related

United States v. Tokars
95 F.3d 1520 (Eleventh Circuit, 1996)
United States v. Ram Kumar Singh
291 F.3d 756 (Eleventh Circuit, 2002)
United States v. Jeremy Bender
290 F.3d 1279 (Eleventh Circuit, 2002)
United States v. Banks
347 F.3d 1266 (Eleventh Circuit, 2003)
United States v. David William Scott
426 F.3d 1324 (Eleventh Circuit, 2005)
United States v. Tampas
493 F.3d 1291 (Eleventh Circuit, 2007)
United States v. Agbai
497 F.3d 1226 (Eleventh Circuit, 2007)
Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
United States v. Dunnigan
507 U.S. 87 (Supreme Court, 1993)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. Mauricio Camacho
40 F.3d 349 (Eleventh Circuit, 1994)

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292 F. App'x 11, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bruce-michael-orr-ca11-2008.